ady v. the United Kingdom, which concerned the dismissal of homosexuals from the armed forces, the Court allowed a certain margin of appreciation to the States as far as the organisation of their own system of military discipline was concerned, it nevertheless found that the applicants' dismissal from the armed forces on the ground of their sexual orientation violated their rights under Article 8 of the Convention. It did not accept the Government's argument that the presence of homosexuals in the army undermined its operational effectiveness, because that argument was not supported by any concrete evidence and the Court was not satisfied that operational-effectiveness problems of the nature and level alleged could be caused by the admission of homosexuals into the armed forces (see Smith and Grady, cited above, §§ 89 to 112).
57. In the present case, the core argument of the Constitutional Court in support of the limitation of the rights of servicemen was that military service imposed specific demands in so far as it required uninterrupted performance of duties by them and that, consequently, the taking of parental leave by servicemen on a large scale would have a negative effect on the fighting power and operational effectiveness of the armed forces. The Court finds that argument unconvincing. It notes the lack of concrete evidence to substantiate the alleged damage to national security. There is no indication that any expert study or statistical research was made to assess the number of servicemen who would be in a position to take three years' parental leave at any given time and would be willing to do so. There is accordingly no evidentiary basis for the assertion that the number of servicemen simultaneously taking parental leave would be so significant as to undermine the fighting capacity of the army. It follows that the Constitutional Court based its decision on a pure assumption, without attempting to probe its validity by checking it against statistical data or by weighing the conflicting interests of maintaining the operational effectiveness of the army, on the one hand, and of protecting servicemen against discrimination in the sphere of family life and promoting the best interests of their children, on the other. Accordingly, it has not been demonstrated to the Court's satisfaction that operational-effectiveness problems of the nature and level alleged would be caused by extending the parental leave entitlement to servicemen.
58. Further, the Court has already found that there was no objective or reasonable justification for the different treatment of men and women in this sphere (see paragraph 49 above). To the extent that the difference was founded on the traditional gender roles, that is on the perception of women as primary child-carers and men as primary breadwinners, these gender prejudices cannot, by themselves, be considered by the Court to amount to sufficient justification for the difference in treatment, any more than similar prejudices based on race, origin, colour or sexual orientation. Nor can the fact that in the armed forces women are less numerous than men justify the disadvantaged treatment of the latter as regards entitlement to parental leave. The Court is particularly struck by the Constitutional Court's intimation that a serviceman wishing to take personal care of his children was free to resign from the armed forces. Servicemen are thereby forced to make a difficult choice between nursing their new-born children and pursuing their military career, no such choice being faced by servicewomen. The Court reiterates in this respect the unique nature of the armed forces and, consequently, the difficulty in directly transferring essentially military qualifications and experience to civilian life. It is therefore clear that, if they choose to resign from military service to be able to take care of their new-born children, servicemen would encounter diffic
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